Dismissed

State of Karnataka v. Bhoju Kulal

Karnataka HC5 Dec 2022CRL.A/1747/2016

Case brief

AI extract

What is this about?

State appeal against acquittal in a POCSO case alleging penetrative sexual assault on a three-year-old. The court found the child victim's evidence uncorroborated by the wound certificate, contradictions among PWs 1 to 3, breach of Section 24 POCSO in recording her statement, panch witnesses who never entered the scene, and a delayed FIR. Appeal rejected and acquittal confirmed.

What the court decided

AI extract

State of Karnataka Vs Bhoju Kulal — Child Sexual Offences (POCSO) | Karnataka HC (2022)

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1 - CRL.A No. 1747 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE C M JOSHI CRIMINAL APPEAL NO. 1747 OF 2016

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BETWEEN:

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Digitally signed by D K BHASKAR Location: High Court of Karnataka

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State of Karnataka By Sub-Inspector of Police Women P.S. Kundapura Rep. by State Public Prosecutor High Court Building Bengaluru – 01.

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...Appellant

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(By Sri. H.S. Shankar - HCGP)

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AND:

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Bhoju Kulal Aged about 52 years S/o Manju Kulal Coolie Resident of Mavinakatte Vandaru Village Kundapura Taluk-576201.

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Smt. Mohini W/o Shankar Kulal Aged about 39 years R/at Vandaru Moodabetta

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Vandara Village and post Udupi Taluk, Udupi District.

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...Respondents

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(By Sri. Suyog Herele . E – Advocate for R-1; R-2 served and unrepresented)

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This Criminal Appeal filed under Sec.378(1) and (3) of Criminal Procedure Code, praying to ; a) Grant leave to appeal against the judgment and order of acquittal passed by the learned Prl. Sessions / Special Judge, Udupi District, Udupi in Special Case No.11/2013 dated 15.02.2016 thereby acquitting accused / respondent of the offence punishable under Section 5 r/w Sec. 6 of Protection of Children from Sexual Offences Act, 2012; b) set aside the judgment and order of acquittal passed by the learned Prl. Sessions / Special Judge, Udupi District, Udupi in Special Case No.11/2013 dated 15.02.2016 thereby acquitting accused / respondent of the offence punishable under Section 5 r/w Sec. 6 of Protection of Children from Sexual Offences Act, 2012; and c) convict and sentence the respondent / accused for the offence punishable under Section 5 r/w Sec. 6 of Protection of Children from Sexual Offences Act, 2012.

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This criminal appeal coming on for ‘dictating judgment’ this day, K. Somashekar .J ., delivered the following:

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J U D G M E N T

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This appeal is filed challenging the judgment of

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acquittal rendered by the Court of the Prl. Sessions / Special Judge, Udupi, in Spl.Case No.11/2013 dated 15.02.2016 acquitting the accused for offences punishable under

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Section 5 read with Section 6 of the POCSO Act, 2012. This appeal has been filed by the State seeking to set-aside the judgment of acquittal rendered by the Trial Court and consequently to convict the accused for the offences leveled against him.

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Heard the learned HCGP for the appellant / State and the learned counsel Shri Suyog Herele E for Respondent No.1 / accused and perused the judgment of acquittal rendered by the Trial Court in Spl. Case No.11/2013 consisting the evidence of PW-1 to PW-10 including the evidence of DW-1 / accused and several documents got marked at Exhibits P1 to P9.

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The factual matrix of the appeal is as under:

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It transpires from the case of the prosecution that on 29.12.2012 at around 2.30 p.m., the accused, in his house situated at Mavinakatte, Vandaru Village, Kundapura Taluk had committed penetrative sexual assault on the victim / PW-2 who was the daughter of PW-1 / Mohini. It is stated

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that the victim girl / PW-2 aged about 3 years 1 month went to the house of the accused along with her brother PW-3 / Srijan in order to play with the son of the accused namely Girish. On seeing them, the accused is said to have sent PW-3 / Srijan along with his son Girish to a nearby shop to bring Gutka. The accused is then said to have taken the girl child aged 3 years and one month inside his house and had closed the door and then made the child to sit on a chair and inserted his index finger into the victim’s private part by removing her nicker. On coming to know of the said incident, the complainant / PW-1 is said to have lodged a complaint before the Shankaranarayana Police as on 02.01.2013 as per Exhibit P1, on the basis of which a case was registered in Crime No.1/2013. Subsequent to registration of the crime, the Investigating Officer / PW-10 had taken up the case for investigation and conducted investigation thoroughly and laid the charge sheet against the accused before the Special Court for the offences under Section 5 read with Section 6 of the POCSO Act, 2012.

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Subsequently, the accused was secured for facing trial and after hearing the learned Special Public Prosecutor and the learned counsel for the accused, and on prima facie finding material against the accused, charge was framed and read over to the accused in the language known to him wherein the accused did not plead guilty but claimed to be tried. In order to bring home the guilt of the accused, the prosecution had examined in all 10 witnesses as PWs 1 to 10 and got marked Exhibits P1 to P9. On closure of the evidence of the prosecution, the statement of the accused was recorded under Section 313 Cr.P.C. But the accused declined the evidence of the prosecution adduced so far. Accordingly it was recorded. Subsequently, the accused was called upon to enter into defence evidence if any. Accordingly, the accused examined himself as DW-1 but no document was got marked on the defence side. Subsequent to closure of the evidence on the part of the prosecution as well as the defence side, after hearing the arguments advanced by the learned Public Prosecutor and so also the

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defence counsel, the Trial Court framed points that arose for its consideration and answering the points in the negative, proceeded to acquit the accused for the reasons assigned therein. PW-4 is Dr. Savitha who had examined the victim / PW-2 and issued the wound certificate as per Exhibit P3. PW-5 / Jayanthi is the relative of PWs 1 to 3. PWs 6 and 7 are the panchas to Exhibit P2 spot mahazar. PW-8 is the panch witness to Exhibit P5 / arrest mahazar. PWs 9 and 10 are the Investigating Officers. The accused was examined as DW-1.

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PW-4 / Dr. Savitha had examined PW-2 / victim girl as on 01.01.2013 at about 12.15 p.m. PW-4 has deposed that PW-1 / Mohini had brought her daughter aged 3 years 3 months saying that she was having pain and swelling in her genital organ. She had further deposed that Mohini told her that on 29.12.2012 when she was bathing her daughter, PW-2 had complained of pain on her genital organ and had also disclosed that Boju uncle had took her inside his house and did something to her private part as a result of which

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she got pain. The said PW-4 / Dr. Savitha on examination had found that there was no swelling of labia majora but there was tenderness and there was no scratch, bruising or tears over labia majora. The Doctor was of the opinion that there was no recent sexual assault but that if anybody touches or handles with force the vagina, tenderness in labia majora can be found. Accordingly, she issued the Wound Certificate as per Exhibit P3. But on cross-examination, the Doctor has stated that history mentioned in Exhibit P3 / wound certificate has been given by Mohini / PW-1 and the same was not given by the victim child. PW-4 / Doctor had further stated that she has not mentioned tenderness over labia majora in Exhibit P3 / wound certificate. She has also denied the suggestion that she was deposing falsely that there was tenderness over labia majora of the victim. She has further asserted that she has issued the correct and true wound certificate as per Exhibit P3. She has also stated that the tenderness on labia majora could be caused during playing and also that there is possibility of

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pretending of false pain at the time of clinical examination. She has also admitted the suggestion that Mohini / PW-1 had earlier come to their PHC and took treatment from her and that she was her patient. Exhibit P3 / Wound Certificate does not mention about the tenderness of labia majora. Hence, the Trial Court had opined that the evidence given by PW-4 that there was tenderness of labia majora cannot be believed, as PW-4 / Doctor was acquainted with PW-1 / Mohini who had visited her hospital earlier and took treatment from her. Since the wound certificate did not disclose any injury caused to labia majora, the Trial Court had opined that the evidence of PW-2 / victim is not corroborated by the medical evidence of PW-4. It is this vital evidence that the Trial Court has relied upon to come to the conclusion that the accused has not committed the alleged crime.

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PW.6 / Udaya Kulal brother of PW.5 / Jayanthi, has stated in his cross-examination that his family members were not in talking terms with the accused and he did not

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visit the house of accused since 2 months prior to the date of incident. Accused who has been examined as DW.1 has also stated that there was dispute between him and PW-5 / Jayanthi in respect of construction of latrine in his property and Jayanthi gave complaint to panchayath when he started construction of latrine and it was about 4 – 5 years ago. He has further deposed that Jayanthi told him that she knew Stri Shakti member and police and she would teach a lesson to him. The Trial Court had observed that in view of the above evidence, the accused has proved that there was enmity between himself and the said PW.5 / Jayanthi who is a relative of PW.1 / Mohini. Hence, the said enmity has been made use of by PW-5 / Jayanthi who has instigated her relative PW.1 / Mohini to file a false complaint against the accused and there was due deliberation between them, which has caused the delay in filing the FIR. The delay in filing the FIR is fatal to the case of prosecution as enmity has been made out between the accused and PW.5 / Jayanthi who is the relative of PW.1 / Mohini. PWs.6 and 7

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who were subjected to examination have stated that on 03.01.2013 police came to the house of accused and inspected his house and prepared spot mahazar as per Ex.P2 and obtained their signatures. As per the contents of Ex.P2, the alleged scene of offence is situated inside the house of accused. PW.6 who stood for cross-examination

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has stated that on that day, he did not go inside the house of the accused. PW.7 has also stated in the crossexamination that he was standing in the court yard of the house of the accused and he did not go inside the house of the accused. Therefore, PWs.6 and 7 who are panchas to Ex.P2 spot mahazar have not gone inside the house of the accused where the spot is situated which is alleged to have been shown by PW.1 to the police. Therefore, the evidence of PWs.6 and 7 would be of no avail to the case of the prosecution in order to prove drawing of spot mahazar as per Ex.P2 in their presence.

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PW.10 / I.O. has stated in her evidence that on 03.01.2013 after preparing spot mahazar as per Exhibit P2

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in the presence of PWs 6 and 7 she returned back to the police station and secured PWs.1 to 3 and 5 and 6 and recorded their statements. PW.2 / victim’s statement has been recorded by PW.10 in the police station. However, as per Section 24 of POCSO Act, the statement of the child shall be recorded at the residence of the child or at a place where she usually resides or at the place of her choice and as far as practicable, by a woman police officer not below the rank of Sub-Inspector of Police and at the time of recording statement of the child, the police officer shall not be in uniform. However, the said provision has not been complied with by PW.10 while recording the statement of PW.2 / victim girl aged about 3 year 1 month. Therefore, the evidence of PW.2 / the victim girl has been recorded against the settled principles and also contrary to the mandatory provision of Section 24 of the POCSO Act, 2012. Further, there are material contradictions noticed in the evidence of PWs.1 to 3. The evidence of PW.2 / victim girl is also not corroborated by the medical evidence of PW.4. There is delay

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in registering the crime and also recording the FIR. Therefore, the Trial Court has expressed that doubt arises with regard to the case of prosecution. Hence, the Trial Court has rendered an acquittal judgment by extending the benefit of doubt in favour of the accused. It is this judgment which is under challenge in this appeal by the appellant / State by urging various grounds.

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Learned HCGP for the appellant / State contends that the impugned judgment of acquittal rendered by the learned trial court is contrary to law, facts of the case and evidence on record. In that, the reasons assigned by the Trial Court while acquitting the accused for the offences levelled are erroneous and improper, which has resulted in a substantial miscarriage of justice.

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The second limb of arguments advanced by the learned HCGP is, the contention that there are material contradictions in the evidence of PWs.1 to 3 and the evidence of PW.2 is not corroborated by the medical evidence of PW.4, is incorrect, in view of the fact that PWs.1 to 3 have

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clearly deposed in support of the case of the prosecution. In spite of the same, the Trial Court assigned reasons erroneously and has rejected the evidence of these witnesses, which is not just and proper. The learned Trial Judge without giving any findings as to how the evidence is not corroborated with each other, has erroneously held that the evidence in contrary in nature, which is not just and proper. Hence, he contends that the judgment of the Trial Court has resulted in a miscarriage of justice.

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The next limb of arguments advanced by the learned HCGP is that the evidence of PW.1 / Mohini, the mother of the victim girl, is clear that she has supported the case of the prosecution by deposing that on the date of incident, victim girl along with her brother went to the house of accused for playing with his son and at that time, the accused sent his son and the brother of victim girl outside to a shop to bring gutka and the accused locked the door from inside and made the victim girl to sit on a chair and removed her clothes and put his finger into her private part and

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thereafter the victim girl informed about the incident to PW-1 / Mohini on the next day. Hence in view of this categorical statement, there was no occasion for the learned Trial Judge to hold that there are contradictions in the evidence of the witnesses. Hence, the judgment of acquittal rendered by the Trial Court is not just and proper.

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It is the further contention of the learned HCGP that the learned Trial Judge has not properly appreciated the evidence of the victim girl herself who has deposed that she and her elder brother had been to the house of the accused for playing. At that time, the accused removed her clothes and put his finger into her private part and during the course of investigation and also before the court, the victim girl has identified the accused. Admittedly, the incident has taken place in the house of the accused and it is for the accused to explain as to how the incident has taken place and in the absence of any explanation by the accused in the statement recorded under Section 313 Cr.P.C., it has to be presumed that the accused has

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committed the offence. Hence, it is contended that the evidence of these two witnesses corroborates with the evidence of PW.3 who is the elder brother of the victim girl who has deposed that on the date of incident victim girl went to the house of accused along with others and when the victim girl was alone in his house, he made the victim girl to sit in a chair and after removing her clothes sexually assaulted her. Hence, there are no contradictions in the evidence of prosecution witness. But the learned Trial Judge has stuck on to technicalities and granted an order of acquittal, which has resulted in a grave miscarriage of justice. Further, the evidence of PWs.1 to 3 also corroborates with the evidence of PW.4 the Doctor who examined the victim girl and issued Ex.P3 wound certificate and her evidence corroborates with the evidence of PW.1 to 3. Hence, the findings of the learned Trial Court that there are material contradictions in the evidence of the prosecution witnesses, is without any basis. Hence, learned HCGP prays that the appeal be allowed and consequently the judgment of

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acquittal rendered by the Trial Court be set aside and the accused be convicted for the offences levelled against him.

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Per contra, learned counsel for Respondent No.1 /

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accused namely Shri Suyog Herele E contends that the impugned judgment of acquittal rendered by the Trial Court is just and proper and needs no interference by this Court in this appeal.

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He contends that the Trial Court having gone through the evidence of PW-1 / Mohini, who is the mother of the victim, PW-2 / victim girl and PW-3 / Srujan who is the brother of the victim girl, has observed that there were inconsistencies in the statements of all these three witnesses as regards the incident that occurred. The Trial Court has mainly relied on the evidence of PW-4 / Dr. Savitha who examined the victim girl and issued the Wound Certificate. It has come in the evidence that PW-2 / victim has not at all stated before PW-4 / Doctor that the accused had put his finger inside the child’s vagina. Further, PW-4 / Dr. Savitha has deposed that she examined the genital organ of the

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victim child and found that there was no swelling of labia majora but there was tenderness and there was no scratch, bruising or tears over labia majora. She has further deposed that she opined that there was no sexual assault. She has further deposed that if anybody touches or handles with force the vagina, the tenderness in labia majora can be found. The wound certificate issued by PW-4 is at Exhibit P3. However, in the cross-examination, PW-4 has further deposed that she has not mentioned tenderness over labia majora in Exhibit P3 wound certificate and the said tenderness. PW-4 has also admitted the suggestion that Mohini had earlier come to their PHC and taken treatment from her and she is her patient. PW-4 has not mentioned in Exhibit P3 about tenderness over labia majora of the victim. The Trial Court has rightly observed that when tenderness of labia majora is not mentioned in Exhibit P3 / wound certificate, the evidence of PW-4 to the effect that there was tenderness of labia majora cannot be believed, as PW-1 / Mohini had visited her hospital earlier and took treatment

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from her and she is her patient. Further, as per the wound certificate, there was no injury to labia majora of the victim. Hence, the Trial Court has rightly held that the evidence of PW-2 / victim is not corroborated by the medical evidence of PW-4.

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The further discrepancy that the Trial Court has noticed is the delay in lodging the complaint. In that, while the incident had taken place on 29.12.2012 and when PW-1 / Mohini came to know of the said incident that day itself, the complaint came to be lodged by PW-1 only on 02.01.2013 after due deliberation, in order to frame the accused in the offence. In that, it is stated that there was a previous enmity between PW-5 / Jayanthi who is a relative of PW-1 / complainant and the accused over construction of latrine in his property in respect of which the said PW-5 had earlier given a complaint against him to the Panchayath. Hence, learned counsel for the respondent / accused contends that PW-1 / Mohini, at the instance of PW-5 / Jayanthi, has filed a false complaint against the accused,

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which has resulted in delay in lodging the complaint. It is contended that the delay in filing the FIR is fatal to the case of the prosecution as enmity has been made out between the accused and PW-5 / Jayanthi, a relative of PW-1 / Mohini.

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It is also contended that PWs 6 and 7 who were the panchas to Exhibit P2 spot mahazar, had not gone inside the house of the accused where the spot is situated, on account of which the evidence of PWs 6 and 7 would not come to the aid of the prosecution to prove the spot mahazar as per Exhibit P2.

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It is lastly contended that PW-10 / I.O. though visited the house of PW-2 / victim, she did not record the statement of the victim in her house. Hence, PW-10 / I.O. has not complied with the mandatory provisions contained in Section 24 of the POCSO Act, 2012 at the time of recording the statement of PW-2. Further, there are material contradictions in the evidence of PWs 1 to 3 and the evidence of PW-2 is not corroborated by medical evidence of PW-4. There is also delay in filing the FIR. Therefore, it is

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contended that the opinion of the Trial Court that doubt arises with regard to the case of the prosecution, requires to be accepted. Hence, the learned counsel contends that the Trial Court has rightly acquitted the accused by holding that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, the learned counsel for the accused / first respondent prays that the appeal be dismissed as being devoid of any merits.

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In the context of contentions made by the learned HCGP for the appellant / State as well as the counter arguments of the learned counsel for the respondent / accused, it is relevant to state that the incident alleged is said to have taken place on 29.12.2012 inside the house of the accused. It is stated that on 29.10.2012, PW-2 who was the daughter of PW-1 / Mohini went to the house of the accused along with her brother PW-3 / Srijan in order to play with the son of the accused namely Girish. On seeing them, the accused had sent PW-3 / Srijan along with his

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son Girish to a nearby shop to bring Gutka. The accused is then said to have taken the victim girl / PW-2 aged 3 years and one month inside his house and had closed the door and then made the child to sit on a chair and inserted his index finger into the victim’s private part by removing her nicker. On coming to know of the said incident, the complainant / PW-1 is said to have lodged a complaint before the Shankaranarayana Police as on 02.01.2013 as per Exhibit P1, on the basis of which a case was registered in Crime No.1/2013. Subsequent to registration of the crime, the Investigating Officer / PW-10 had taken up the case for investigation and conducted investigation thoroughly and laid the charge sheet against the accused before the Special Court for the offences under Section 5 read with Section 6 of the POCSO Act, 2012.

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Sections 5 and 6 of the POCSO Act relate to ‘aggravated penetrative sexual assault’ and punishment for the said offence.

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The allegation is that the victim girl / PW-2 was said to be subjected to aggravated penetrative sexual assault by the accused / Respondent No.1 herein. The alleged incident of penetrative sexual assault is said to have taken place on 29.10.2012 and the victim child was subjected to examination by the Doctor as on 01.01.2013 and the said Doctor after examining the victim girl, had issued the Wound Certificate as per Exhibit P3. The relevant portion of the said Wound Certificate reads thus:

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“Local Examination of Genital Parts:

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Labia majora: No swelling, tears, bruises or abrasions Labia minora: No scratch, bruising, tears.

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Fourchette: No tear, No bleeding.

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Vulva: No injury, no bleeding / discharge.

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Perineum: Looks healthy (normal).

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Hymen: Character of the hymen could not be appreciated.

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Vagina and cervix: Could not be commented.

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Anus: No bleeding, tear, discharge, edema / tenderness.

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Clinical Opinion:

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After performing the clinical examination, the findings are not consistent with the recent sexual assault.”

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On an examination of the said Wound Certificate issued by the Doctor, it is revealed that there was no sign of any swelling, tears, bruises or abrasions on the labia majora and further the Doctor has also opined that there is no evidence of any recent sexual assault on the victim girl. Though the wound certificate does not mention about any tenderness of labia majora, PW-4 / Dr. Savitha in her examination-in-chief, has deposed that there was tenderness present over labia majora. However, it is to be noticed that PW-1 / Mohini had visited the hospital of PW-4 / Dr. Savitha earlier and had taken treatment from her and PW-1 was a known acquaintance to the said Doctor. Hence, there is justification in the opinion of the Trial Court that the said Doctor might have given the evidence that there was tenderness of labia majora in spite of the wound certificate mentioning that there was no tenderness of labia majora, in

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view of the fact that PW-1 was known to her earlier. Tenderness of labia majora occurs when any person puts one’s finger in the vagina. Hence, we find that the evidence of PW-2 / victim girl that accused had inserted his finger in her vagina, is not corroborated with the wound certificate given by PW-4 / Dr. Savitha.

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However, the evidence of PW-2 / victim girl who was aged 3 years 1 month at the time of the incident is that, she and her elder brother had been to the house of the father of Girish for playing. In their house, the accused Bhojanna had made her sit on a chair and removed her nicker and inserted his finger in her private parts and the said victim girl has also identified the accused as the said Bhojanna. She has further deposed that thereafter, her mother and elder brother took her to the house. PW.2 / victim girl has further stated that she told about the act of the accused to her mother when her mother was bathing her and has also told her mother that she had pain in her private parts. While PW-1 has stated that the accused had

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inserted his finger inside the private parts of PW-2, the victim / PW.2 in her cross-examination has stated that accused pinched on her vagina. PW-3 / Shrujan also has deposed that PW-2 told his mother that accused pinched on her vagina. Hence, the evidence of PWs 1, 2 and 3 are not consistent with each other, which has been rightly pointed out by the Trial Court while rendering the acquittal judgment.

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Further, Section 24 of the POCSO Act which states that the statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of sub-inspector, has not been followed in this case. PW-10 / I.O. has not complied the mandatory provision of Section 24 of the POCSO Act while recording the statement of the victim / PW-2 who was aged 3 years 1 month. The said circumstance has also be noted by the Trial Court while acquitting the accused. Further, PWs 6 and 7 who were the

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panchas to Exhibit P2 spot mahazar, had not gone inside the house of the accused where the spot is situated, on account of which the Trial Court has rightly discarded the evidence of PWs 6 and 7 in order to prove the spot mahazar as per Exhibit P2. Further, the Trial Court has also rightly held that there were material contradictions in the evidence of PWs 1 to 3 and the evidence of PW-2 is not corroborated by medical evidence of PW-4.

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It is relevant to refer to a judgment reported in 1985 Crl.L.J. 645 in the case of Gunduchi Patnaik and another Vs. State of Orissa, wherein it is held as under:

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“The evidence of a child witness is dangerous unless immediately available and before any possibility of coaching and tutoring (See 1983 CAR 129 ( SC) State of Assam v. Mafizuddin Ahmed ). In the instant case, the evidence of PWs. 2 and 6, close relations of, the deceased, who, as noticed by the learned Sessions Judge were not independent witnesses, had not been immediately available before any possibility of coaching or tutoring. It would be extremely unsafe to rely on the evidence of such witnesses.”

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Further, in the judgment reported in AIR 2012

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S.C.2955 in the case of “K.Venkateshwarlu Vs. State of

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Andhra Pradesh”, it is held as under:

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“Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.”

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Further, in the judgment reported in 2003 (2) Crimes 93 (SC) in the case of “Zafar Vs. State of U.P.”, it is held

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thus:

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“In view of the doubtful features and other infirmities in the prosecution evidence as discussed above, we are of the view that it is not safe to rely on the evidence of P.W.2 whose evidence needs to be scrutinized with due care and caution. It is, however, unnecessary to probe into the other question whether the ocular evidence is inconsistent with the medical evidence. Though it is a case of concurrent finding by both the Courts resting on the appreciation of evidence, we are of the view that the trial court and the High Court overlooked certain important aspects in the practical application of the rule of prudence and caution which the High Court itself proceeded to apply in appreciating the evidence of child witness. The High Court failed to take note of certain telling factors emerging from the evidence on record. There was no critical appraisal of the evidence of P.W.2 except focusing attention on two alleged contradictions of no significance and repelling the arguments based on them. Even if the finding that medical evidence does not go counter to the prosecution case is allowed to remain, there are other fatal infirmities in the evidence relied upon by the prosecution which were not adverted to by the High Court. In these circumstances, we are of the view that it is a fit case for interference under Art. 136. Accordingly, we hold that the accused is entitled to benefit of doubt and his conviction ought to be set aside.

¶142

29 - CRL.A No. 1747 of 2016

¶143

We. therefore, allow the appeal and direct the authorities concerned to release the accused from the prison forthwith.”

¶144

Further, in the judgment reported in 2006 Crl.L.J., 310 (S.C) in the case of “Pratap Singh another Vs. State of

¶145

Madhya Pradesh” it is held as under:

¶146

“(A) Evidence Act (1 of 1872), S.3-Murder caseEvidence by minor, a eye witness-He contradicted himself on material particulars as to witnessing incident and narration of incident to other prosecution witnesses – Suspicion also arises as regards correctness of statements made in FIR regarding narration of incident to other prosecution witnesses-Finding by trial court that he might have been tutored witness-No interference.”

¶147

As regards reliability of the evidence of a witness who was of tender age, it is relevant to refer to a judgment of

¶148

the Hon’ble High Court of Calcutta in the case of Piyarul

¶149

Sk. Vs. State of West Bengal (2022 SCC Online Cal

¶150

1319). The relevant portion of the said judgment reads thus:

¶151

“22. … When the prosecution primarily rests on the evidence of a child witness, it is the duty of the Court to examine the evidence of the said child witness

¶152

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CRL.A No. 1747 of 2016

¶154

with utmost care and circumspection. A child of tender years is prone to prompting and tutoring. Hence, an onerous duty is cast on the Court to examine the deposition of a child witness not only on his capacity and ability to understand circumstances but also on the possibility of the witness being tutored by persons who have control and custody over him. ...”

¶155

Having regard to the principles laid down in the aforesaid judgments, it is relevant to state that in the case on hand, the victim girl was aged about 3 years and one month and though her mother / PW-1 has stated about the sexual assault made by accused on PW-2 / victim, the victim girl herself has not stated about the sexual assault made on her by the accused. Further, the medical evidence available also does not disclose any sexual assault. The incident though is alleged to have taken place when the child was aged 3 years 1 month, she has been subjected to examination only when she was aged 5 years old. Hence, it has to be borne in mind that she is prone to prompting and tutoring. Hence, her evidence cannot be fully relied upon by the Court to arrive at a conclusion that the accused has

¶156

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¶157

CRL.A No. 1747 of 2016

¶158

committed the offence, particularly when medical evidence also does not disclose any penetrative act or any injury caused to her private parts.

¶159

Further, it cannot also be lost sight of that there was a previous enmity between PW-5 / Jayanthi who is a relative of PW-1 / complainant and the accused over construction of latrine in his property in respect of which the said PW-5 had earlier given a complaint against him to the Panchayath. Hence, there was also possibility of PW-1 / Mohini, at the instance of PW-5 / Jayanthi, having filed a complaint against the accused, suit their purpose, which has resulted in delay in lodging the complaint.

¶160

All these aspects have been taken into consideration by the Trial Court while acquitting the accused of the offences alleged. Therefore, in this appeal, it does not arise to call for interference the judgment rendered by the Trial Court in view of the fact that the Trial Court has acquitted the accused by assigning justifiable reasons and more so, there is no perversity or absurdity or any infirmity

¶161

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CRL.A No. 1747 of 2016

¶163

found in the impugned judgment of acquittal rendered by the Trial Court. Consequently, the appeal preferred by the State is required to be rejected as being devoid of merits. In view of the aforesaid reasons and findings, we proceed to pass the following:

¶164

O R D E R

¶165

The appeal preferred by the appellant / State under Section 378(1) and (3) of the Cr.P.C. is hereby rejected. Consequently, the judgment of acquittal rendered by the Trial Court in Spl.Case No.11/2013 dated 15.02.2016 is hereby confirmed.

Sd/-

JUDGE

Sd/JUDGE

State of Karnataka v. Bhoju Kulal

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State of Karnataka v. Bhoju Kulal

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